___________

                                 No. 95-4056
                                 ___________

JOEL WHISMAN, a minor, through        *
his next friend Michelle              *
Whisman; MICHELLE WHISMAN;            *
MICHAEL WHISMAN; LYNN WHISMAN,        *
                                      *
     Plaintiffs-Appellees,            *
                                      *
     v.                               *
                                      *
CHUCK RINEHART, in his                *
individual capacity as Chief          *
Deputy Juvenile Officer of the        *
Thirty-ninth Judicial Circuit         *
of the State of Missouri; MARLA       *
PURSLEY, in her individual            *
capacity as social worker for         *
the Lawrence County Office of         *   Appeal from the United States
the Missouri Division of Family       *   District Court for the Western
Services; RUTH COX, in her            *   District of Missouri.
individual capacity and               *
officially as social worker           *
supervisor of the Lawrence            *
County Office of the Missouri         *
Division of Family services;          *
ALFRED BLAIR, in his                  *
individual capacity and               *
officially as County Director         *
of the Lawrence County Office         *
of the Missouri Division of           *
Family Services; BILL JINES, in       *
his individual capacity and           *
officially as Chief Juvenile          *
Officer of the Thirty-ninth           *
Judicial Circuit of the               *
State of Missouri,                    *
                                      *
     Defendants-Appellants.           *


                                 ___________

                   Submitted:     June 12, 1996

                       Filed:    July 23, 1997
                                 ___________
Before ARNOLD, Chief Judge, F. GIBSON, Circuit Judge, and KORNMANN,*
     District Judge.

                               ___________

KORNMANN, District Judge.


     Rinehart, Pursley, Cox, Blair, and Jines appeal the district court's1
denial of their motion to dismiss this 42 U.S.C. § 1983 action.   Whismans
filed this action against defendants, juvenile officers and social workers,
claiming that defendants violated plaintiffs' constitutional rights of
familial association, denying plaintiffs due process of law.    Defendants
filed a motion to dismiss, contending that plaintiffs' claims were in
essence based upon claims of violation of state laws and, therefore, are
not actionable under 42 U.S.C. § 1983, and that defendants Rinehart and
Jines are entitled to absolute immunity.   Defendants further contend that
the claims against Jines, Cox and Blair are based upon respondeat superior,
an insufficient basis for liability for suit under 

. § 1983, that
the grandparents, Michael and Lynn Whisman, are not real parties in
interest and should be dismissed, that plaintiffs have failed to show
deprivation of a constitutional right in violation of due process, and that
defendants are entitled to absolute and qualified immunity.    The District
Court denied the motion to dismiss.   We affirm.
                              I. BACKGROUND
     We set forth the facts, construing the complaint liberally. Frey v.
City of Herculaneum, 

, 671 (8th Cir. 1995).        Joel Whisman
(“Joel”) is the sixteen month old son of Michelle




         *
       The HONORABLE CHARLES B. KORNMANN, District Judge, United
States District Court for the District of South Dakota, sitting by
designation.
     1
     The Honorable Joseph E. Stevens, Jr., United States District
Judge for the Western District of Missouri.

                                   -2-
Whisman (“Michelle”).       Michelle left Joel with a babysitter on the evening
of February 16, 1995, near her home in Aurora, Missouri.                  On the morning
of February 17, 1995, the babysitter contacted the Lawrence County,
Missouri,     Division     of   Family    Services   and   spoke   with   Marla   Pursley
(“Pursley”), a social worker.             The babysitter reported to Pursley that
Michelle had not picked up Joel as agreed and that Michelle's boyfriend had
told the babysitter that Michelle was at home "passed out drunk."                   Chuck
Rinehart (“Rinehart”), Chief Deputy Juvenile Officer, contacted the police.
An officer went to Michelle's home at approximately 10:00 a.m. but failed
to make contact with Michelle.           Michelle contends she did not fail, at the
agreed time, to pick up Joel and was not "passed out drunk".
       Pursley went to the babysitter's home, examined Joel, and found him
to be in good health.           At that time, the babysitter told Pursley she had
contacted Lynn Whisman (“Lynn”), Michelle's mother and Joel's grandmother,
and that Lynn had agreed to pick up Joel from the babysitter around noon.
Pursley, after consulting with Rinehart, directed the babysitter to
immediately deliver Joel into Rinehart's custody.               The babysitter did so
at approximately 11:45 a.m., driving Joel to Monett, Missouri, fourteen
miles away.
       Rinehart examined Joel and drove him to Mt. Vernon, Missouri, leaving
him at the Tri-County Shelter Home.           Rinehart then returned to his office
in Moneta.
       Before Rinehart returned, Lynn arrived at Rinehart’s office in Moneta
and    met   with   Bill   Jines    (“Jines”),    the   Chief   Juvenile    Officer   and
Rinehart's supervisor.           Lynn requested that Joel be delivered to her.
After Rinehart returned, Lynn requested both Rinehart and Jines to deliver
Joel   to    her.    They refused to do so or to advise Lynn of Joel's
whereabouts.        Rinehart advised Lynn to obtain a lawyer and file an
application for custody.
       Rinehart and Pursley were notified on the afternoon of February 17,
1995, that Michelle was willing to sign over custody of Joel to Lynn.
Michelle and Lynn made repeated requests for




                                            -3-
Joel's return and the termination of his detention between February 17 and
March 1, 1995.   On March 1, 1995, Michelle received in the mail copies of
a petition and Order of Temporary Legal Custody, with a letter notifying
her a hearing was planned for March 15, 1995.          The letter was dated
February 27, 1995, postmarked on February 28, 1995.
     The order granting temporary custody to the Division of Family
Services was ostensibly signed on February 17, 1995.      Plaintiffs contend
the order was backdated and that this was a common practice used by
defendants.   The petition and order were not filed until March 1, 1995, the
day Michelle received a copy of the petition and order in the mail.        On
March 2, 1995, Whismans filed a request for an immediate hearing.    Over the
objection of defendants, the hearing was held on March 6, 1995.        Joel's
physical custody was restored to his family on March 6, 1995, seventeen
days after he was taken into custody by defendants.
                               II. DISCUSSION
     Defendants appeal the denial of the motion to dismiss,          claiming
absolute and qualified immunity. Only these issues in the present case are
appealable as a matter of right prior to a final judgment.          Hafley v.
Lohman, 

, 266 (8th Cir. 1996).       We review de novo a district
court's denial of a motion to dismiss on the ground of immunity.       Hafley
v. 

; Brown v. Griesenauer, 

, 434 (8th
Cir. 1992).
     When considering a motion to dismiss, we must construe the complaint
liberally and assume all factual allegations to be true.     Goss v. City of
Little Rock, 

, 308 (8th Cir. 1996).    We may order dismissal only
if it appears beyond a reasonable doubt that the plaintiffs can prove no
set of facts which would entitle them to relief.      

;
Frey v. City of 

.     "A motion to dismiss should
be granted 'as a practical matter . . . only in the unusual case in which
a




                                    -4-
plaintiff includes allegations that show on the face of the complaint that
there is some insuperable bar to relief.'"                Frey v. City of 

(quoting Hishon v. King & Spalding, 

, 73, 

, 2232, 

(1984)).
A. Absolute Immunity
      Defendants allege they are entitled to absolute quasi-judicial or
quasi-prosecutorial     immunity.         The    United    States   Supreme     Court   has
emphasized that “the official seeking absolute immunity bears the burden
of showing that such immunity is justified for the function in question.”
Burns v. Reed, 

, 486, 

, 1939, 

(1991).   “The presumption is that qualified rather than absolute immunity
is sufficient to protect government officials in the exercise of their
duties” and,   therefore, the Supreme Court has been “quite sparing” in its
recognition of absolute immunity.         Burns v. 

, 111
S. Ct. at 1939.
      The United States Supreme Court, in Imbler v. Pachtman, 

,
431, 

, 995, 

(1976), established the absolute
immunity of a prosecutor from a civil suit for damages under 42 U.S.C. §
1983 "in initiating a prosecution and in presenting the State's case."                   To
the   extent   that   defendants    are    sued    for     initiating   state    judicial
proceedings seeking temporary protective custody of Joel, their "role was
functionally comparable to that of prosecutor."             Thomason v. SCAN Volunteer
Services, Inc., 

, 1373 (8th Cir. 1996).             The gravamen, however,
of Whismans' complaint is not based upon the institution of state court
proceedings, but upon defendants' failure to investigate, their detaining
Joel, and the claimed inordinate delay in filing state court proceedings.
Under a liberal reading of the Whismans’ complaint, defendants’ actions did
not aid in the presentation of a case to the juvenile court; they were
intentionally designed to




                                           -5-
avoid or unreasonably delay judicial process.      These actions are not
prosecutorial in nature and do not form the basis for absolute quasi-
prosecutorial immunity.
     “Judges performing judicial functions enjoy absolute immunity from
§ 1983 liability.”   Robinson v. Freeze, 

, 108 (8th Cir. 1994).
Judicial immunity is extended to officials other than judges when “their
duties are functionally comparable to those of judges -- that is, because
they, too, exercise a discretionary judgment as part of their function.”
Robinson v. 

(quoting Antoine v. Byers & Anderson,
Inc., 

, 436, 

, 2171, 

(1993)).
Defendants’ claimed actions in the present case do not fall within this
category.
B. Qualified Immunity
     Government officials performing discretionary functions are entitled
to qualified immunity unless they violate clearly established statutory or
constitutional rights of which a reasonable person would have known.
Harlow v. Fitzgerald, 

, 818, 

, 2738, 

396, (1982).   We have held that "qualified immunity is an affirmative
defense, "which will be upheld on a 12(b)(6) motion only when the immunity
is established on the face of the complaint."   Hafley v. 

(quoting Weaver v. Clarke, 

, 1255 (8th Cir. 1995)).
     The qualified immunity analysis is a two-step process.      Weaver v.

.   The threshold question is whether the plaintiff
has alleged the violation of a constitutional right.   Ebmeier v. Stump, 

, 1013 (8th Cir. 1995) (quoting Cole v. Bone, 

, 1332
(8th Cir. 1993)).    If plaintiffs meet this standard, we next determine
"whether that right was 'clearly established' at the time of the alleged
violation."   Weaver v. 

. “A right is ‘clearly
established’ when the




                                    -6-
contours of the right are sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”                   Birkenholz
v. Sluyter, 

, 1216 (8th Cir. 1988).              “In determining whether
the legal right at issue is clearly established, this circuit applies a
flexible standard, requiring some, but not precise factual correspondence
with precedent, and demanding that officials apply general, well-developed
legal principles.”      J.H.H. v. O’Hara, 

, 243 (8th Cir. 1989).
     Qualified immunity is usually raised by a motion for summary judgment
after a limited amount of discovery has been conducted to determine whether
defendants    acted   objectively    in    a     reasonable   manner    and    whether   a
plaintiff’s rights were clearly established at the time of the alleged
deprivation.    See Murphy v. Morris, 

, 1103 (8th Cir. 1988).
This is an objective standard.             The standard is to be applied to a
particular defendant’s conduct as a question of law and is to be decided
by the court prior to trial.        Swenson v. Trickey, 

, 133 (8th
Cir. 1993).    We review the inquiry on a motion to dismiss by accepting all
well pleaded facts in the complaint as true.
     1.   MICHELLE AND JOEL WHISMAN’S CLAIMS
     Michelle     has    alleged    that       defendants'    actions    violated     her
constitutional right to not be deprived of the custody of her son without
due process of law.      Parents have a recognized liberty interest in the
care, custody, and management of their children.             Myers v. Morris, 

, 1462 (8th Cir. 1987).         Both parents and children have a liberty
interest in the care and companionship of each other.                     See Lehr v.
Robertson, 

, 258, 

, 2991, 

(1983). ("[T]he relationship of love and duty in a recognized family unit
is an interest in liberty entitled to constitutional protection."). Myers
v. 

.         That liberty interest "is limited by the
compelling     governmental   interest      in     protection    of    minor    children,
particularly




                                           -7-
in circumstances where the protection is considered necessary as against
the parents themselves."     

a broad view of what constitutes "clearly established" under
the qualified immunity analysis.      Munz v. Michael, 

, 799 (8th
Cir. 1994).     The balance favors the plaintiffs when the test is based
solely on the allegations in the complaint.         Hafley v. 

(balancing an employee's First Amendment rights against a public
employer's interests).    We have held that “when a state official pursuing
a   child   abuse   investigation   takes    an   action    which   would    otherwise
unconstitutionally disrupt familial integrity, he or she is entitled to
qualified immunity, if such action is properly founded upon a reasonable
suspicion of child abuse.”     Thomason v. SCAN Volunteer 

.
      This does not appear to be a case of balancing the parent’s liberty
interest against the state's interest in protecting the child.              Before Joel
was removed to defendants’ custody, defendants were advised that Lynn,
Joel's grandmother, had agreed to pick up          Joel by noon.     The babysitter
had contacted Lynn and thus, arguably, was entirely comfortable with Lynn’s
prompt response and plan to pick up Joel.                  Defendants blocked this
reasonable arrangement, which arrangement might have been authorized or
directed by Michelle.      Defendants apparently had no information to the
contrary.   Defendants knew there was no indication of any physical neglect
of Joel, no indication of any immediate threat to his welfare and no
indication of any criminal activity by Michelle or anyone else.               All they
apparently had was third hand hearsay as to Michelle being intoxicated
while the child was being cared for by a babysitter.          There was not, under
the allegations of the complaint, any reasonable suspicion of child abuse
such as was present in Thomason v. SCAN Volunteer Services, 

.
As we have already observed, rights of parents and children, in such a
relationship, are not absolute.      “The intangible fibers that




                                       -8-
connect parent and child have infinite variety. . . . It is self-evident
that they are sufficiently vital to merit constitutional protection in
appropriate cases.”     Lehr v. 

, 103 S. Ct. at 2290
(emphasis added).     We are unwilling to conclude that the case before us is
not such an appropriate case.       The allegations here as to Michelle and Joel
are totally unlike the allegations and the factual scenario in Ebmeier v.

, where we agreed with the district court that the actions of
the defendants were objectively reasonable and where there was no violation
of a constitutionally protected liberty interest.                As in Thomason, our
holding is limited to the claimed facts of this case.               Despite repeated
attempts to retrieve Joel from defendants' custody, defendants refused to
return Joel.        No investigation was done to determine whether it was
necessary or even advisable to take Joel into custody in the first place
and no investigation was ever done as to the possibility of returning Joel
to his mother, grandmother or anyone else designated by Michelle.                    We
accept as true, for the purposes of a motion to dismiss, that the state had
no compelling governmental interest in taking custody of Joel and there was
no reasonable suspicion of child abuse or neglect.
      Defendants contend they were acting under a state court order.                Yet
no state court order was filed until 13 days after defendants had taken
Joel into custody.     Orders of this type are not effective until filed.           See
Nance v Nance, 

, 345 (Mo. App. 1994).           Defendants attempted
to   delay    the   hearing   and   Joel's   return   to   his    mother,    in   clear
contravention of Michelle's and Joel's rights.             Michelle, on her own or
acting through her mother, had a clearly established right to custody of
Joel, of which right defendants reasonably should have known.               Joel had a
corresponding clearly established right to familial association with his
mother.      Defendants have not overcome the threshold inquiry with respect
to




                                        -9-
Michelle’s and Joel’s claims.   To the contrary, the threshold question is
answered in favor of Michelle and Joel.
     Even if defendants had a right to take temporary custody of Joel,
defendants had a corresponding obligation to afford Michelle and Joel an
adequate post-deprivation hearing.   Doe v. Hennepin County, 

,
1329 (8th Cir. 1988).   The right to an adequate post-deprivation hearing
was clearly established in February of 1995.          Defendants scheduled the
hearing for March 15, 1995, nearly a month after taking Joel into custody.
Further, defendants objected to an earlier hearing, claiming administrative
inconvenience.   Michelle’s and Joel’s first opportunity for a due process
hearing was seventeen days after Joel was taken into custody.        Under the
facts of this case, seventeen days was not a prompt hearing.
     Defendants contend that plaintiffs could have obtained a lawyer and
availed themselves of certain procedural remedies at an earlier time, thus
satisfying their right to due process.      We cannot accept this contention.
There may be some analogy in observing that any person whose clear
constitutional rights are violated has the right to later employ counsel.
When the state deprives parents and children of their right to familial
integrity, even in an emergency situation, without a prior due process
hearing, the state has the burden to initiate prompt judicial proceedings
to provide a post deprivation hearing.      Weller v. Dep’t. of Soc. Serv. for
Baltimore, 

, 396 (4th Cir.       1990).   The Second Circuit held,
in Duchesne v. Sugarman, 

, 828 (2nd Cir. 1977):
           In this situation, the state cannot constitutionally “sit
     back and wait” for the parent to institute judicial
     proceedings. It “cannot . . . [adopt] for itself an attitude
     of ‘if you don’t like it, sue.’”      The burden of initiating
     judicial review must be shouldered by the government. We deal
     here with an uneven situation in which the government has a far
     greater familiarity with the legal procedures available for
     testing its action.




                                     -10-
      In such a case, the state cannot be allowed to take action
     depriving individuals of a most basic and essential liberty
     interest which those uneducated and uninformed in legal
     intricacies may allow to go unchallenged for a long period of
     time.
We find Duchesne particularly persuasive where defendants are alleged, in
the present case, to have provided plaintiffs with false information as to
how they should proceed.       The fact that other remedies may have been
available to plaintiffs to secure their constitutional rights to a post-
deprivation hearing does not relieve defendants of their obligation to
provide such a hearing.      Of even more concern is the failure to provide
Joel his right to a prompt post-deprivation hearing; he was clearly not in
a position to secure that right for himself.
     Defendants contend the supervisory officials, Jines, Cox and Blair,
are immune from liability.    Clearly, claims based upon respondeat superior
are not cognizable under 42 U.S.C. § 1983.      Frey v. City of 

.   The claims against the supervisory officials, however, are
based upon failure to properly train and supervise as well as creating,
encouraging and following the unconstitutional custom and practice of
detaining children for thirty days without a due process hearing.       Both
these claims are cognizable under 42 U.S.C. § 1983.   Tilson v. Forest City
Police Department, 

, 806 (8th Cir. 1994); Weiler v. Purkett, 

, 151 (8th Cir. 1997).
     2.     MICHAEL AND LYNN WHISMAN’S CLAIMS
     Defendants contend Lynn and Michael Whisman, Joel's grandparents,
have failed to allege the violation of a constitutional right.           The
grandparents alleged in the complaint that they had the right to intervene
in any juvenile court proceeding concerning Joel, which right defendants
deprived them of without due process of law.      Mo. Rev. Stat. § 211.177.1
provides:
     A grandparent shall have a right to intervene in any proceeding
     initiated pursuant to the provisions of this




                                     -11-
      chapter, in which the custody of a grandchild is in issue,
      unless the juvenile judge decides after considering a motion to
      intervene by the grandparent that such intervention is against
      the best interest of the child.
Further, Rule 111.02(b) of the Missouri Juvenile Court Rules provides:
      When a juvenile is taken into judicial custody, the juvenile
      shall not remain in custody but shall be released at once to
      the juvenile’s custodian or some other suitable person, unless;
      (1) the court has ordered the juvenile to be in detention; or
      (2) temporary detention has been ordered pursuant to Rule
      111.06; or
      (3) the juvenile was taken into protective custody and the
      court determines the conditions requiring protective custody
      continue to exist.
The complaint alleges that at the time Lynn initially requested that Joel
be returned to her, a request immediately joined in by Michelle, and during
the next twelve days, there was no court order for detention.          In fact, the
complaint alleges that Lynn was told on February 17, 1995, that a court
order had to be signed for the process to begin and that it would take 30
days to obtain a court order.      The grandparents allege that these actions
prevented them from exercising their statutory rights as grandparents to
intervene in the juvenile proceeding and such actions constitute a denial
of their rights without due process.
      The Missouri Court of Appeals held in Ruth v. State of Missouri, 

, 530 (Mo. App. 1992), that no statute confers upon a grandparent
an   unconditional   right   to   intervene    in   juvenile   court   proceedings
concerning the custody of a child.            In 1993, the Missouri Legislature
enacted Mo. Rev. Stat. § 211.177.1 which mandates the right to intervention
unless the juvenile judge decides, after considering the motion of the
grandparents, that the requested intervention is contrary to the best
interest of the child.




                                       -12-
        Alleged violations of state laws, state-agency regulations, and even
state court orders do not by themselves state a claim under 42 U.S.C.§
1983.       Only federal rights are guarded and vindicated by such statute.
Ebmeier v. 

.          Constitutional significance may attach
only to certain interests created by state law and it is clear that not
every transgression of state law may do double duty as a constitutional
violation. 

be extremely careful in examining claimed violations
of state laws, regulations and court orders.              Only in very limited and
obvious circumstances will federal constitutional significance attach in
these matters.      “There is a body of law, to be sure, holding that state law
may create a ‘liberty interest’ protected by the Fourteenth Amendment.               If,
for example, a state statute gives ‘specific directives to the decision
maker that if the (statute’s) substantive predicates are present, a
particular outcome must follow,’ a ‘liberty interest’ protected by the
Fourteenth Amendment is created.”          Bagley v. Rogerson, 

, 328 (8th
Cir. 1993) (quoting Kentucky Dept. of             Corrections v. Thompson, 

, 463, 

, 1910, 

(1989)).
        Michael and Lynn advance the argument that they have a liberty
interest in the custody of their grandchildren.                “[W]e reach the more
fundamental question whether . . . a natural grandparent’s interest in the
society of her grandchildren, though an interest rooted in powerful
emotions, is a liberty interest under the due process clause.                  If the
grandchildren are in their parents’ custody, the answer is probably no .
.   .   A    more   difficult   question    is    presented   where,   as   here,    the
grandchildren are not in the parents’ custody.”               Ellis v. Hamilton, 

, 513 (7th Cir. 1982). The Whismans allege the impacts of the
defendants’ conduct on each individual and on the family as a whole.                These
are significant allegations under the plurality opinion in Moore v. City
of East Cleveland, 

, 

, 

(1977), a
case in which a zoning ordinance which prevented a




                                           -13-
grandmother from living with her grandson was struck down. The Court was
there concerned with the interests of the child as well as the grandparent.
It is also significant that, in the present case, there was no contest
between the mother and the grandparents. They were united in interest in
attempting to restore the family unit.
         We are also “under a duty to examine the complaint to determine if
the allegations provide for relief on any possible theory,” even if it is
a theory not advanced by the grandparents.     Harrison v. Springdale Water
& Sewer Comm’n, 

, 1426 (8th Cir. 1986).        We held over nine
years before Joel was taken into custody that “access to the courts is a
fundamental right of every citizen.”       

.    The
Missouri Legislature, in 1993, provided grandparents guaranteed access to
the courts by allowing grandparents to file a motion to intervene in
juvenile court proceedings.   Mo. Rev. Stat. § 211.177.1.   Thus, Michael and
Lynn Whisman had a clearly established right in 1995 to         petition the
Missouri juvenile court for custody of Joel.    Grandparents who wish to seek
to intervene should receive “whatever process is due in connection with the
determination of whether” intervention is in the child’s best interests.
Kentucky Dep’t. of Corrections v. Thompson, 

, 463 (1989).
     Government action designed to prevent an individual from utilizing
legal remedies may infringe upon the First Amendment right to petition the
courts.    In re Worker’s Compensation Refund, 

, 822 (8th Cir.
1995).     The complaint alleges that defendants intentionally failed to
initiate juvenile court proceedings until March 1, 1995.      Defendants were
aware that the     grandparents desired to obtain custody of Joel and that
Michelle had authorized it.     Instead of promptly initiating proceedings
wherein the grandparents could petition to intervene, defendants told Lynn
that they could do nothing until such proceedings were initiated and that
it would take thirty days to initiate




                                    -14-
proceedings.       Defendants’ alleged actions in preventing the grandparents
from petitioning the court for custody of Joel state a cause of action for
violation of their First Amendment rights to access to the courts. The
Missouri statute did not authorize grandparents to initiate any custody
proceeding.    It authorized intervention and defendants blocked such right
by refusing to act to initiate the proceeding. Plaintiffs have alleged the
violation     of   a    clearly   established   constitutional   right   of   which a
reasonable person would have known.         Defendants’ motion to dismiss on the
grounds of qualified immunity was therefore properly denied.


                                       Conclusion


     For the foregoing reasons, the order of the District Court is
affirmed.


     A true copy.


              Attest:


                       CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




                                         -15-